Foreign investor could only set-up joint venture with Vietnam
travel agency to set-up travel services business in Vietnam because transport
of passenger belongs to investment areas with conditions applied
to foreign investor inVietnam.

No one could deny that
information technology has tremendously changed the way travel services
business operates. The use of booking reservation system
application on smartphone and internet are widespread that make travel has
never been easier. Foreign investor would be interested to explore the
travel services market. However, 100% foreign owned company is not allowed
to set-up in travel services business in Vietnam. As this investment area is
conditional, it is advised that a law firm in Vietnam should be consulted
to ensure compliance with local regulations.

The application process
and documents requirements are briefly as following:

I. Required documents:

1.Application for the International Travel
Business License (form);

2.Certificate of business registration (copy –
certified)

3.Business plan for the international travel
agency;

4.Tour schedule

5.Proof of at least 4 years of experience in
international travel business operations

6.Certified copies of the tourist guides’ cards
whereby at least 3 international tourist guides are required

7.Confirmation of bank deposit (as per
regulations);

8.Proof of office premises or legally registered
place of business

II. Business License
Application Procedure

1.Submission of the required documents to the
correct authority (Department of Culture, Sports and Tourism of the
province/city where the business is headquartered).

2.The Department of Tourism of the province/city
completes the records of appraisal and submits a written request with the agency’s
records to the Minstry of Culture, Sports and Tourism in Vietnam within ten
working days from the date of receipt of a valid application. When cases are
not eligible for the proposed permit to the state agencies, the provincial
tourism department shall cite the specific reasons for refusal.

3.The state management agency of tourism (VNAT –
Ministry of Culture, Sports and Tourism) is responsible for reviewing and
licensing the international travel business within ten working days from the
date of both receipt of the file and written request of the state agency of
tourism in the province. In case of refusal, the ministry shall state the
specific reasons to the state and provincial tourism authorities

A foreign business entity or a foreign trader is allowed to
set-up a branch in Vietnam to conduct business activities.

Having the right to
conduct business activities and make profit are how a branch
differs from a representative office in Vietnam. A
branch depends on the foreign business entity that set-up the branch while a
foreign owned company set-up in Vietnam exists by itself. The Vietnam
Department of Industry and Trade will be approving the establishment of a
branch in Vietnam while Vietnam Ministry of Planning and Investment will be the
State agency that coordinate the setting up a company in Vietnam.

In particular, the
branch of a foreign business entity in Vietnam (referred to as the “Branch”)
means a subsidiary unit of the foreign business entity, established in
accordance with the law of Vietnam in order to enter into contracts in Vietnam
and conduct activities being the purchase and sale of goods and other
commercial activities consistent with its licence for establishment in
accordance with the law of Vietnam and any international treaty to which the
Socialist Republic of Vietnam is a member.

The Branch will need to
apply and obtain the establishment license; and have a seal bearing the name of
the Branch.

1. Rights of the Branch

To
rent offices and to lease or purchase the equipment and facilities
necessary for the operation of the branch.

To
recruit Vietnamese and foreign employees to work for the branch in
accordance with the law of Vietnam.

To
enter into contracts in Vietnam in accordance with the activities stated
in the license for establishment of such branch and in accordance with the
Vietnam Law.

To
open Vietnamese dong and foreign currency accounts at banks which are
licensed to operate in Vietnam.

To
remit profits abroad in accordance with the law of Vietnam.

To
have a seal bearing the name of the branch in accordance with the law of
Vietnam.

To
conduct activities being the purchase and sale of goods and other
commercial activities consistent with its license for establishment in
accordance with the law of Vietnam and any international treaty to which
the Socialist Republic of Vietnam is a member.

A foreign company which
has effectiveness business activities will be allowed to open the Branch in
Vietnam if this company has real demand to open the market in Vietnam and meet
some conditions as below:

Being
a trader recognized by the law of the country where it has been lawfully
established or made its business registration;

Having
been operating for at least five years after its lawful establishment or
business registration.

3. Issuance the
Certificate of Branch:

The issuance of the
Certificate of Branch will be implemented by the Department of Industry and
Trade Department after the foreign company meets all of conditions as
Vietnam legal requirements.

The issuing period will
be within 20 working-days after the date of submitting the full valid documents
as requested.

At ANT Lawyers, a law
firm in Vietnam with offices in law
office Hanoiand Ho
Chi Minh City, we are available to assist clients in licensing
and post-licensing matters to help clients with all questions and services in
setting up and maintaining the company or other form of business entities in
Vietnam. We could be reached at email: ant@antlawyers.vnor
office tel: +848 35202779.

Industrial design is the appearance of the product which is
expressed through shapes, lines, colors or combinations of these factors.

A product as being
commercially marketed will have a certain style with a combination of certain
shapes, lines, colors, etc which is the design of the product. When a new
design to be launched, if it attracts customers, there is a big chance there
will be fake or imitated products. Therefore, before a new design is
launched, business owners need to conduct registration procedures for
protection of industrial designs. That is the action for the protection
of its product design and the prestige of the enterprise in the market.
This protection will prevent the infringement of the design, therefore
the registration of industrial design protection is
essential.

ANT Lawyers’ services in
the field of industrial design registration advice covers:

• Implement of the
protected industrial design rights: investigate, monitor, negotiate, seek
arbitration or initiate a lawsuit or request other competent agencies for
handling of infringement in Vietnam and abroad;

• Negotiate, draft, evaluate
and register the of changing industrial design ownership in Vietnam and abroad;

• Advise on building
strategies, brand development; For advice and specific details in each
case, please contact us directly for advice.

However there are
restrictions in some cases in regard to investment capital, investment area,
special licenses required. The investor is suggested to consult with a law firm
in Vietnam for advice and service offering.

Before setting up
business in Vietnam, ask yourself the following questions:

1. Which business should
I invest in Vietnam?

There are
non-conditional investment areas and conditional investment areas.
Establishing company in the non-conditional investement areas are more
simple than in conditional investment areas. Investment in IT services,
manufacturing, management consulting, business promotion are a few samples of
non-conditional investment areas. Example of conditional investment areas
are real estate, trading, travel agencies, freight forwarding…which are more
complicated with investment
conditions. Investment conditions might also be changed over
the time depending on the WTO commitments which Vietnam enters.

2. What should I name
the business in Vietnam?
The company in Vietnam has to have Vietnamese name, and English name. The
company could also have abbreviated name. The name of the company in
Vietnam indicates the structure of the company, the business lines, and the
name that differentiate against other businesses. For instance, the
company could be named Alpha consulting limited liability company.

3. Where should I register
the address of the business in Vietnam?
Not every address could be used to register a company. The address has to
be an address of a house with leasing agreement or office building which owner
has license to operate as office building.

4. What is the legal
structure of the company?
Depending on the number of investor contributing capital, company could be
set-up as one member limited liability company or two ore more member limited
liability company or joint stocks company.

5. How much capital is
required to set-up a company in Vietnam?
The investment amount depends on the business plan and is subject to the
approval of the provincial Department of Planning and Investment evaluating
application dossier. In some business areas like real estate, banking and
finance, minimum capital is required. In general for non-conditional investment
area, the law does not specify the minimum capital to establish a
company in Vietnam however the State agencies that evaluate
investment plan could reject the investment project which are not feasible.
Bank statement in foreign banks could be used to prove sufficient fund of
investment capital.

6. Whom will be legal
representative and work permit in Vietnam?
The investor will need to appoint the legal representative in Vietnam to
oversee the business performance and take legal responsibility in Vietnam. If
the legal representative is an expatriate, whom is a capital contributing
member or owner of a limited liability company or a member of the Board of
Management of a shareholding company which is registered to operate in Vietnam,
he or she will be exempted from work permit in Vietnam. Otherwise, he or she
will need to have a work permit to work in Vietnam legally.
The work permit holder would then apply for temporary
residence card to live in Vietnam as long as the work permit
allows.

7. How long does it take
to set-up a company in Vietnam?
It depends on what type, scale, and whether or not conditions are required. For
a simple minimum capital without conditions to set-up, it would take 30 working
days. For setting up company in conditional investment areas i.e. trading company
in Vietnam, time would be lengthen due to the involvement of a
number of State agencies approving the investment project and it would take 60
working days. For setting up company in other investments in areas requiring
conditions to meet, time might be taken depending on the type of conditions and
the government agencies evaluating the conditions of investment.

8. Whom will be granting
the investment license in Vietnam?
For most of the investment projects, the provincial state agencies with the
approval of the Department of Planning and Investment (DPI) will be granting
the Investment Certificate in Vietnam. However, depending on the type,
scale, and whether or not conditions are required, other Vietnam State agencies might be involved. For the
case of trading company, ministry of trade and commerce, ministry of finance,
provincial people’s committee will be reviewing the investment application
dossier as well.

9. What are the tax
liability in Vietnam?
Major taxes in Vietnam are corporate income
tax, import and export tax, value added tax, and personal income tax in
Vietnam. In some special areas, there are other taxes. The corporate income tax
is currently at 22% and will reduce to 20% beginning 2016. Export is mostly
encouraged as such the export tax is 0 however there are special cases when
export tax is larger than 0. Import tax varies according to tariff. Value added
tax is mostly at 10% however in some cases, VAT could be 5% or 0%. Personal
Income tax varies according to income level and is applicable from VND
9,000,000 above.

10. What are mandatory
reports submissions requirement in Vietnam?
Companies are required to keep accounting books, prepare and submit tax reports
on monthly, quarterly and annually. Foreign companies are also required to have
financial audit taken before the financial year end. The financial year in
Vietnam is from January to December and the deadline to submit financial report
is March 30th for the previous year. Other reports
are required to be submitted at other State agencies.

Decree No. 07/2016 / ND-CP regulating the Commercial Law
regarding representative offices and branches of foreign traders in Vietnam
that have recently been issued by the Government.

Accordingly, foreign
traders can establish their representative offices and branches
in Vietnam under Vietnam’s commitments in international
treaties to which Vietnam is a member. A foreign trader cannot establish more
than one representative office or branch with the same name within a province
or city under central authority.

Foreign traders are
licensed to establish representative offices when they meet five conditions:

– Foreign traders can
establish and register for business in accordance with law of nation and
territories participating in international treaties in which Vietnam is a
member, or recognized by the law of those nations and territories.

– Foreign traders that
have been in operation for at least one year from the date of establishment or
registration.

– In case the
certificate of business registration or papers with equivalent value of the
foreign traders have prescribed the time limit for operation, then the duration
must be at least 1 year from the date of submitting record.

– The operation of the
representative office must match the commitment of Vietnam in the international
treaties in which Vietnam is a member.

– The case where the
operation of the representative office is inconsistent with Vietnam’s
commitments or foreign traders do not belong to any nations and territories
participating in the international treaties in which Vietnam is a member, the
establishment of representative offices must be approved by the Minister of
specialized management.

The Decree also
stipulates the conditions for foreign traders to be granted licenses to
establish their branches. Specifically, foreign traders will be licensed for
the establishment of branches when they meet 5 conditions:

– Foreign traders can
establish and register for business in accordance with law of nation and
territories participating in international treaties in which Vietnam is a
member, or recognized by the law of those nations and territories.

– Foreign traders that
have been in operation for at least five year from the date of establishment or
registration.

– In case the
certificate of business registration or papers with equivalent value of the
foreign traders have prescribed the time limit for operation, then the duration
must be at least 1 year from the date of submitting record.

– The operation of the
branch office must be consistent with the market-opening commitments of Vietnam
in the international treaties in which Vietnam is a member, and in line with
the business lines of the foreign trader.

– If the content of the
branch operation is inconsistent with Vietnam’s commitments or foreign traders
do not belong to any nations and territories participating in the international
treaties in which Vietnam is a member, the establishment of branches must be
approved by the Minister of specialized management.

The license for theestablishment of representative office and
branch of foreign traders have a term of 5 years but does not exceed the
remaining term of the certificate of business registration or papers of equivalent
value of the foreign trader in the case that those papers contain provisions on
the term.

A foreign business
entity or a foreign trader is allowed to establish Representative Office in Vietnam according to
the Commercial Law No 36/2005 and Decree No. 72/2006/NĐ-CP dated July 25th,
2006 detailing the commercial law regarding Vietnam-based representative
offices and branches of foreign traders.

Representative
office of a foreign business entity in Vietnam (referred as
“Representative Office”) means a subsidiary unit of the foreign business
entity, established in accordance with the law of Vietnam in order to survey
markets and to undertake a number of commercial enhancement activities
permitted by the law of Vietnam. Representative Office will need to apply
and obtain the establishment license; and have a seal bearing the name of the
representative office.

Setting up a
Representative Office is less complicated from setting up a company in Vietnam.
The Vietnam Department of Trade will be approving the establishment of
Representative Office in Vietnam while Vietnam Ministry of Planning and
Investment will be the State agency that coordinate the setting up a company in
Vietnam. The time duration to establish a Representative Office is
shorter than to establish
a company. There are fewer conditions to meet than conditions
in setting up a company in Vietnam. The main difference between a
Representative Office and a company in Vietnam is that the Representative
Office could not directly conduct profit making activities.

Rights of the
Representative Office:

To
operate strictly in accordance with the purposes, scope and duration
stated in the license for establishment of such representative office;

To
rent offices and to lease or purchase the equipment and facilities
necessary for the operation of the Representative Office;

To
recruit Vietnamese and foreign employees to work for the Representative
Office in accordance with the law of Vietnam;

To
open accounts in foreign currency and in Vietnamese Dong sourced from
foreign currency at banks which are licensed to operate in Vietnam, and to
use such accounts solely for the operation of the Representative Office.

Obligation of the
Representative Office:

Not
to directly conduct profit making activities in Vietnam;

Not
to enter into commercial contracts of the foreign business entity or to
amend or supplement such contracts already signed except where the head of
the Representative Office has a valid power of attorney from the foreign
business entity;

To
pay taxes, fees and charges and to discharge other financial obligations in
accordance with the law of Vietnam;

To
report on the operation of the Representative Office in accordance with
the law of Vietnam

A foreign company which
has effectiveness business activities will be allowed to open the
Representative Office in Vietnam if this company has real demand to open the
market in Vietnam and meet conditions as below:

Being
a business entity or trader recognized by the law of the country or the
territory (hereinafter referred to collectively as the country) where it
has been lawfully established or made its business registration;

Having
been operating for at least one year after its lawful establishment or
business registration in its country.

The issuing period will
be within 20 working-days after the date of submitting the full valid documents
as requested.

Trademark opposition
could be filed to prevent a pending application for a mark from being granted
application. Litigation is the final measure to handle dispute during
trademark protection in Vietnam.

Trademark is a sign that
help distinguish the goods or services of one enterprise from those of others.
Together with industrial
design and patent, trademark of goods and services plays an
extremely important role for the growth of the enterprise. Trademark
establishes a link between enterprise and customer. A strong trademark
will attract customers to use goods or services. When trademark is popular and
economic benefits achieved through sale of goods or provision of services
coupled with trademark is large, the violation of trademark is inevitable.

The annual reports of
the Vietnam National Office of Intellectual Property (NOIP) prove that
trademark violation in Vietnam is the most popular, among other industrial
property rights. According to the preliminary annual report in 2011, and
2012, there has been more than 1,000 cases of trademark violations each
year. Report of 2013 shows more than 2,000 trademark infringements were
handled with the total fines of trademark violators of around USD 1 million.
Having said that, it is important for trademark owner to register trademarks in Vietnam for better
protection. This is also suggested for even well-known trademarks.

For registration,
trademark owner has two options: either directly register trademark in Vietnam
by filling an application for registration with the Vietnam NOIP, or seek the
protection in Vietnam through Madrid’s system. For the first option, the
trademark owner needs to prepare, file for registration, and pay fee as the
requirement of Vietnam Intellectual Property law. In case trademark needs
to be protected in a number of nations, including Vietnam, trademark owner may
register trademark through Madrid’s system.

Where the violation of
trademark occurs, trademark owner needs to judge the level of infringement,
level of damage to choose suitable resolutions. Initially, the trademark
owner may protect by requiring to the trademark violator to terminate the
infringing acts, apologize, and rectify. In case of being damaged, trademark
owners have rights to claim compensation. If failing to reach result,
trademark owner may use settlement mechanism through negotiation or mediation
or could request the competent state agencies to handle acts of infringement
through i.e. filling a denunciation application and submitting to the Vietnam
NOIP. Litigation might be required to handle acts of infringement.
Generally, the proceeding of civil litigation is more complex than the
arbitration proceeding. In cases the trademark owner needs a decision from
court in order to end trademark infringement, civil litigation is top priority.
In the remaining cases, arbitration is a better choice with advantages of
cheaper cost, shorter settling time, and more flexible.

It is understandable
that a foreigner who works and lives in Vietnam wishing to register marriage
with a Vietnamese or even another foreigner under Vietnam laws.

However, it is
challenging for foreigners to be aware of the legal provisions governing the
issue of marriage involving foreign elements in Vietnam. The parties involved
in the marriage should to go through not so simple administrative
procedures, because of the complexity of managing and protecting the legitimate
rights of not only Vietnamese citizens, but also foreigners, to be governed
under the Law on Civil Status. It is not unfamiliar when husband and wife
agree to sign prenuptial agreement, agreements on personal assets and
properties, and agreements to separate assets and properties during the
marriage time.

Procedures for
Registration of Marriage in Vietnam

According to the current
law provisions, the competence to register marriage between a Vietnamese
citizen and a foreigner belong to the District People’s Committee where the
Vietnamese citizen is residing. In addition to papers relating to declarations
and documents that must be prepared, in order to marry a Vietnamese citizen, a
foreigner have to submit papers proving their marital status issued by a
competent authority of the country which he/she is a citizen. The certificate
issued no more than six months, up to the time of application, confirming the
current no spouse. In case, foreign law does not provide for the granting of
papers certifying the marital status, the papers shall be replaced by the
foreign competent bodies certifying that such persons meet all the marriage
conditions under the laws of that country. Documents, papers issued by the
competent authority of the foreign country must be notarized, legalized and
authenticated.

After submitting
complete, and valid dossiers and paying the necessary fees, if the marriage
conditions are fully met, the chairperson of the District People’s Committee
will approve the application. Upon marriage registration, both husband and wife
must be present at the head office of the People’s Committee, and both will sign
in the marriage certificate.

Foreigner’s
Challenges?

To register marriage
involving foreign in Vietnam, foreigners must have a marital status documents
issued by a foreign competent authority where he/she is a citizen. Depending on
the country, the paper proving citizen’s marital status issued to citizens when
they apply for marriage registration is different. Most of the difficulties the
foreigners encountered are the application for the issuance of papers abroad
and at the same time they must carry out administrative procedures for the
legalization of that document at the competent authority in Vietnam. Thus, the
time required to prepare necessary documents and documents is generally long
with strict administrative procedures.

In fact, marriages involving
foreign couples encounter procedural difficulties and take a considerable
amount time for preparation.

ANT Lawyers have experience in civil and family matters to advice
clients whom are interested for such legal service in Vietnam. We
assist our clients in the process of reviewing agreements, procedures and
concerned matters in civil and family.

Ministry of Industry and Trade has informed about the final
finding of anti-dumping
investigation into Galvanized Steel exported to Vietnam from
China, and Korea.

Accordingly, on March
3rd, 2017, Vietnam Competition Authority (VCA) finished investigation process
of the case and sent the final determination daft to concerned parties.

Based on the conclusion,
Ministry of Industry and Trade shall decide whether or not to apply trade
remedy measures galvanized steel.

On March 3rd, 2016,
Ministry of Industry and Trade issued Decision No. 818/QĐ-BCT on investigation
of anti-dumping case against galvanized steel products originating from
People’s Republic of China (including Hong Kong) and South Korea imported into
Vietnam.

The investigation
duration is one month. During the investigation process, on Sep 1st, 2016,
Ministry of Industry and Trade imposed temporary anti – dumping tariff on
Galvanized Steel imported into Vietnam

Many businesses were
imposed at high tax imposed the temporarily for anti-dumping upto 38,34%.

If the temporary
anti-dumping tariff is continued to be imposed, many Vietnam steel
corporations will benefit. In the meantime, the foreign steel
exporter whom export to Vietnam considers decision of imposing high anti-dumping
rates are unfair due to the way VCA utilized to calculate the dumping margin.

The anti-dumping laws in Vietnam will continue be adjusted
as Vietnam further integrate into the global business. The changes of
laws will be monitored by ANT Lawyers international
trade practice in Hanoi, Da Nang and Ho Chi Minh
City to provide clients with updates.

Trademark is a sign for
consumers to identify the goods or services of each company from those of
others.

In Vietnam, many businesses today have not paid sufficient
attention to trademark protection. Only when their trademarks would be
infringed by other companies or competitors, they really concern to protect
their trademarks and business through trademark registration, trademark
opposition or take further actions. Such situation will negatively impact
the business financially.

Trademark rights will be protected within the national territory,
therefore when a trademark has been registered in Vietnam, it will be protected
in Vietnam. If one company wishes their trademarks to be protected in
other countries, it could:

Directly register in each
country or

Register via the Madrid
International registration by filing a single application which indicates
the registrations at respective countries.

If registered under the Madrid International, firstly, trademarks
must have been submitted trademark applications or have registered in Vietnam,
depending on whether the country for protection is under the Madrid Protocol or
the Madrid Agreement.

ANT Lawyers’ services in the field of trademark registration
advice covers:

• Look-up, assess and consult possibilities to register trademark
in Vietnam and abroad;

• Represent clients in applying for certificates of trademark
registration, record modification, extend degree of trademark protection in Vietnam and
abroad;

• Evaluate the effectiveness of the certificate of trademark
registration and the possibility of trademark rights violation;

• Implement of the protected trademark rights: investigate,
monitor, negotiate, seek arbitration or initiate a lawsuit or request other
competent agencies for handling of infringement in Vietnam and abroad;

The foreign contractors
are only permitted to carry out construction activities in Vietnam so long as
being granted construction operation license by Ministry of Construction as per
the Construction Law.

EPC Contractors have
increasingly been interested to learn the requirements of licenses and permits
to operate in Vietnam. It is advised that the construction law firm in Vietnam
with lawyers specializing in construction area to assist the foreign
contractors to understand the legal frameworks, and requirements of foreign
contractors before and after taking on construction projects in Vietnam after
bidding result.

Investment in
construction activities has been growingly rapidly. In order to meet the tender
conditions and take part in construction activities in Vietnam, foreign
contractors shall follow the regulations in Vietnam and obtain proper license
during the preparation and the execution of the construction of the project.

Prior to construction
operation license, foreign constructors have experienced another form of permit
named contractor’s permits for foreign contractors in Vietnam. These are two
concepts however the process of registration and document requirements are not
so different.

There has been an effort
to harmonize and reduce differences and conflicts arisen in many fields of laws
regulating the mentioned subject and the new provisions of the Law on Bidding,
Construction Law and the Investment Law to be issued in 2014 which establish a
stable legal framework for the implementation of foreign contractor’s bidding
and construction activities in Vietnam. This changes does not
differentiate which position the foreign contractors are appointed from the
lead contractor, the main contractor, contractor to subcontractor consortium.
Unlike domestic contractors, foreign contractors must be granted construction
operation license for each awarded contract. The amendment from the
contractor’s permits for foreign contractor contribute to the unity of the same
concept in different legal instruments regulating the license procedure of
foreign contractors operating within the territory of Vietnam, and limit the
unnecessary overlaps, difficulties to law interpretation and application of
legal entities.

We shouldn’t forget to
mention that the amendment of the foreign contractor’s construction operation
license is to increase the relevance between the name and nature of the
licensed activities of foreign contractors in construction operation. One of
the initial conditions to a foreign contractor to be licensed is when the
contractor has won a bid or been selected to be sub-contractor of an investment
project. Therefore, the terms construction operation license shall demonstrate the role
of the contractor in the construction projects they have been participated in.

The new construction
operation license for foreign contractor is expected to be easier to relate to
when foreign contractor take part in construction project in Vietnam.
This would attract more foreign contractors to undertake construction projects
in Vietnam to bring in the technology equipment, as well as the management
skills to Vietnam.